Citation Nr: 1807487 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-09 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable rating for service-connected left inguinal hernia, status post (s/p) repair. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 2007 to November 2007 and January 2010 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. The Board notes that, initially on appeal as well, was the issue of service connection for PTSD. However, this claim was granted in a February 2016 rating decision during the course of this appeal and the Veteran subsequently withdrew his claim in a February 2016 written correspondence. As such, the claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); see also 38 C F R § 20.204. To the extent that the issue of entitlement to service connection for an umbilical/ventral hernia as secondary to the service-connected left inguinal hernia s/p repair has been raised by the record in a January 2016 VA examination report, the Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). FINDING OF FACT The Veteran has no detectable inguinal hernia or residuals from his previous left inguinal hernia repair. CONCLUSION OF LAW The criteria for an initial compensable rating for left inguinal hernia s/p repair have not been met. 38 U.S.C. § 1155 (2012), 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.114, Diagnostic Code 7338 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to address his claims. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017). Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA has fulfilled its duty to assist the Veteran. Service treatment records, private treatment records identified by the Veteran, and VA medical treatment records, have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA examinations were conducted in June 2012 and January 2016. The examiners made all required clinical findings and provided sufficient information. 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the VA examinations are fully adequate for adjudication purposes. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Increased Schedular Evaluation The Veteran's service-connected bilateral inguinal hernia is currently rated as non-compensable under 38 C.F.R. § 4.114, DC 7338. Under DC 7338, a non-compensable evaluation is appropriate if the hernia is small, reducible, or without true hernia protrusion; or where it is not operated, but remediable. A 10 percent evaluation is warranted if a hernia is postoperative recurrent, readily reducible and well supported by truss or belt. A 30 percent evaluation is warranted for a small, postoperative recurrent hernia, or unoperated irremediable hernia that is not well-supported by truss, or not readily reducible. A maximum schedular evaluation of 60 percent is warranted for a large, postoperative recurrent hernia that is not well-supported under ordinary conditions and not readily reducible, when it is considered inoperable. The Veteran contends that a compensable rating is warranted because his previous hernia repair prevents him from being able to lift 60 pounds without pain and soreness, and he is unable to stand for long periods of time without feeling discomfort. He further contends that it also prevents him from doing his job to the level that he should be doing it. The evidence shows that the Veteran had a left inguinal hernia repair in October 2010 while in service. In April 2012, the Veteran presented for an initial evaluation for VA care with a complaint of having a lesion on the shaft of his penis. With regard to his previous hernia repair, he reported that he gets occasional pain at the surgical site with heavy lifting, which will last a few minutes and resolve spontaneously. He further reported having no recurrence of bulges or masses, and no change in bladder or bowel habits. The examiner diagnosed the Veteran with condyloma of penis. In June 2012, the Veteran received a VA examination for his hernia condition in which the Veteran reported that prolonged standing bothers him. The examiner noted the Veteran's past left inguinal hernia repair, and upon examination found no hernia detected on the right or left side. The examiner also noted that as a result of his previous hernia repair, the Veteran had a scar that was not painful or unstable and less than 39 square cm. In a March 2013 Emergency Department Note, the Veteran presented for an evaluation of chronic, intermittent left groin pain, with achiness. The Veteran noted the pain has lasted for the past two years, and that the pain is worse with heavy lifting, prolonged standing, sitting, and it is hard to run. A genitourinary (GU) examination found no adenopathy, erythema or swelling, but a small varicocele type prominence in the Veteran's left scrotum. The examiner also noted testes without mass, swelling or tenderness; no inguinal bulges or hernia noted or palpated. The examiner requested an ultrasound of the Veteran's left testicle. In April 2013, the Veteran complained of left groin and testicle pain since his inguinal hernia repair in 2010. He further reported lifting and jogging aggravates the pain, ejaculation makes the pain worse, and ibuprofen is not helpful. The examiner noted that the Veteran had no voiding issues and no bleeding. An abdomen examination found no hernia. The examiner noted that the Veteran may have mild epididymitis, and noted that the Veteran's scrotal ultrasound from March 2013 showed varicoceles bilaterally. The Veteran was referred to the urology clinic. During the Veteran's May 2013 urology consult, the Veteran complained of pain in his left testicle. He again reported the pain increases when standing for long periods of time, during heavy lifting, or when moving his bowels. The Veteran denied any voiding difficulties or gross hematuria. The examiner diagnosed the Veteran with bilateral varicoceles and indicated she would schedule the Veteran for a left varicocelectomy. In the Veteran's January 2016 VA examination, the Veteran reported that the location of the left inguinal surgery repair has been stable. Upon examination, the examiner found no hernia detected in the right or left side, and noted no indication for a supporting belt. He further found that the scar from the Veteran's previous surgery was not painful or unstable and less than 39 square cm., and that the old repaired left inguinal hernia is stable. However, the examiner noted that the Veteran had a small ventral hernia caused by his previous hernia repair. The examiner explained that the previous surgical incision was made in the inferior umbilicus, and that the Veteran now has an umbilical hernia adjacent to the original surgical sight/scar. The examiner found that the original surgery for his left inguinal hernia is the most likely cause for his current umbilical hernia due to tissue weakening from the original incision through that region. The examiner further found that this is a common risk factor of this type of surgery, and that the umbilical hernia is likely caused by the left inguinal hernia repair. Based on review of the medical and lay evidence of record, the Board finds that entitlement to a compensable rating for the Veteran's left inguinal hernia s/p repair is not warranted under DC 7338 at any time during the period on appeal. The Board notes that the main residual the Veteran is experiencing following his hernia repair is pain in the area of the repaired hernia, but his pain has not resulted in a recurrence of his previous hernia. Additionally, the evidence shows that the pain may have resulted from other conditions unrelated to his s/p left inguinal repair. As noted above, in April 2012 the Veteran reported having occasional pain at the surgical site, but that it last a few minutes and resolves. Additionally, in March 2013 when the Veteran complained of left groin pain, he was ultimately diagnosed with bilateral varicoceles requiring surgery, which the Veteran declined to have. Further, while the Veteran's January 2016 VA examination, revealed an umbilical hernia, likely caused by the Veteran's previous hernia repair, the Board notes that the examination indicates that the umbilical hernia is a ventral hernia adjacent to the original surgical site, therefore, the umbilical hernia is separate and distinct from the Veteran's previous left inguinal hernia and is not a recurrent inguinal hernia. To the extent that the Veteran's noted umbilical/ventral hernia is secondary to his service-connected inguinal hernia, as noted in the introduction, this claim has not been adjudicated, and thus, the Board does not have jurisdiction over it. As mentioned previously, assignment of a compensable rating under DC 7338 is warranted if a hernia is postoperative recurrent, readily reducible and well supported by truss or belt. None of the evidence of record shows that the Veteran's s/p left inguinal hernia is recurrent, readily reducible, and supported by a belt. Both VA examinations found no evidence of an inguinal hernia detected on the Veteran's right or left side. Moreover, the April 2016 VA examiner indicated that there was no indication of a supporting belt. He further found that the old repaired left inguinal hernia is stable. A compensable rating under Diagnostic Code 7338 requires a recurrence of the inguinal hernia, which the Veteran does not have. This diagnostic code does not provide for a higher rating based on residual pain resulting from a hernia repair. Further, the Veteran is not entitled to a separate rating for his scar as there is no evidence of the surgical scar being painful or unstable. Therefore, the Veteran's disability picture more nearly approximates a non-compensable rating under Diagnostic Code 7338 throughout the period on appeal. The Board acknowledges that the Veteran is competent to report observable symptoms, e.g. pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor is he competent to attribute pain to a specific diagnosis. Such competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. As such, the Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Based on the above, the Board finds that the criteria for an initial compensable rating under DC 7338 for a left inguinal hernia s/p repair are not met in the absence of evidence of a postoperative hernia that is recurrent, readily reducible, and well supported by truss or belt. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Extraschedular consideration The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1) (2014). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's left inguinal hernia s/p repair show that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran has contended that his left inguinal repair prevents him from doing heavy lifting without pain and soreness, and he is unable to stand for long periods of time without feeling discomfort. He further contends that it also prevents him from doing his job to the level that he should be doing it. The Board notes that while the evidence shows that the Veteran's previous left inguinal hernia repair may have had an impact on the Veteran's occupational activities, there is no evidence that the disability "markedly" interferes with employment as the Veteran did not have frequent hospitalization, medical records of an exceptional or unusual clinical picture, nor is there any other reason why an extraschedular rating should be assigned. Moreover, considering the absence of any inguinal hernias or residuals thereof, it is likely the Veteran's other diagnosed medical conditions is the cause of the pain he has in his left groin region. This notion is further supported by the April 2016 examiner who noted that the Veteran should avoid heavy lifting with regard to his current umbilical hernia, and the urologist's opinion who recommended surgery for the Veteran's bilateral varicoceles. Therefore, as the first prong of Thun has not been satisfied, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is not warranted. For the foregoing reasons, the Board finds that the effects of the Veteran's previous left inguinal hernia repair did not constitute marked interference with employment beyond that contemplated by the assigned rating. See 38 C.F.R. § 4.1. Therefore, the Board has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is not warranted. ORDER Entitlement to a compensable rating for service-connected left inguinal hernia, status post (s/p) repair, is denied ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs